Terms & Agreement
These Terms and Conditions (the “Terms’) are part of and incorporated into that Master Services Agreement (the “MSA”) executed by and between Network For Teaching Entrepreneurship (“NFTE”) and the client identified in such MSA (the “Client”). Capitalized terms used and not otherwise defined herein shall have the same meanings given for those terms in the MSA execution page.
1. Provision of Services.
1.1. Orders. Subject to the terms and conditions of this Agreement, NFTE will make the Service(s) identified in Client’s Orders available to Client for the Service Term (described below), solely for use with respect to schools within Client’s district or similar organization (or with respect to Client, if Client is itself a school). In the case of any module of the Service for which the Order indicates that the total price has been determined on per-unit basis (such as per-student, per-teacher or per school), Client’s access to the Service will be limited to the number of units (e.g., students, teachers or schools) indicated on the Order. If Client desires to extend access to the Service during any Service Term to any additional units beyond those provided on the original Order, NFTE will amend the Order to reflect such addition upon Client’s payment of an appropriate incremental fee determined at the same per-unit price. Except as otherwise provided on the Order or this Agreement, each Order is non-cancellable and will be subject to the terms and conditions of this Agreement. If required as part of Client’s internal procedures, an Order may be supplemented by a purchase order issued by Client, but in no event will a Client purchase order modify any of the pricing, deliverables or terms set forth in the Order or this Agreement.
1.2. Delivery of Services. The Services may consist of one or more of the following: (a) access to one or more courses of instruction with respect to a specific subject offered by NFTE (each, a “NFTE Course”); (b) instructional curriculum, assessments, video and audio recordings or live webinars and other content made available by NFTE in connection with the NFTE Courses Client has purchased (collectively, the “NFTE Content”); (c) implementation, training and instructional support services for Client’s in-house instructors with respect to one or more of the purchased NFTE Courses; (d) other similar professional or consulting services ancillary to the purchased NFTE Courses (such as organizing and facilitating enrichment events); and (e) technical support with respect to the purchased Hosted Courses (defined below). Services may be provided live/in person or digitally (or some combination of the foregoing), as set forth in the applicable Order. Without limiting the generality of the foregoing, the NFTE Courses and associated NFTE Content may be provided to Client (i) directly from NFTE in a digital format (“Local Courses”); or (ii) to Client via integration of NFTE’s systems with Client’s existing learning management platform (“Hosted Courses”), to the extent such an integration is offered by NFTE, in each case as set forth in the Order.
1.3. End Users. Client may permit its faculty and students to access and use one or more modules or features of the Services, in which case those faculty and students are referred to as “End Users”; the number of End Users may be limited as set forth on the Order, and faculty End Users may be required to complete certain training with NFTE before utilizing the Services. Subject to any eligibility guidelines NFTE may issue, Client is solely responsible for designating which of its faculty will be End Users and for all use of the Services by those End Users. NFTE will not have any liability to Client or any third party for any End User’s use or misuse of the Services.
1.4. Service Suspension. NFTE may suspend the provision of any Hosted Courses in whole or in part and without notice: (i) if NFTE believes Client’s or its End Users’ use of the Hosted Courses represents a direct or indirect threat to the function or integrity of NFTE’s or its service providers’ system or networks, or any third party’s use of the Services; (ii) if reasonably necessary to prevent unauthorized access to client data (including, without limitation, the Client Data); or (iii) to the extent necessary to comply with legal requirements. If NFTE suspends access to the Hosted Courses without notice, NFTE will provide the reason for such suspension, upon Client’s request. Any suspension of services for the foregoing reasons will apply to the minimum necessary portion of the online portion of the Hosted Courses and only be in effect for as long as reasonably necessary to address the issues giving rise to the suspension. NFTE may also, upon such notice as is reasonably practicable under the circumstances, perform scheduled or emergency maintenance (including temporary suspension of the Hosted Services as necessary) to maintain or modify the Hosted Courses or NFTE Technology.
1.5. License Grant. Subject to the terms and conditions of this Agreement, NFTE grants to Client, a limited, nontransferable, nonexclusive license for Client and its End Users, during the applicable Service Term: (a) for any Hosted Courses, to access over the Internet, via the learning management platform integration referenced in the Order (the “Authorized LMP”), and use the Hosted Courses (including the NFTE Content set forth therein) solely to support Client’s normal course of business and according to the access authority levels configured or assigned by Client; (b) for any Local Courses, to download, upload, access, display and reproduce such Local Courses and the NFTE Content therein, solely as necessary to distribute such Local Courses via Client’s learning management platform to the End Users authorized under the
Order to support Client’s normal course of business; (c) publish the output generated from Client’s or its End Users’ use of the NFTE Courses and Assessment Tools, as defined below (collectively, “Output”), in research reports or other publications published or issued in Client’s usual and ordinary course of business to Client’s constituents (whether in paper or electronic form) (each, an “Authorized Publication”); (d) disseminate those Authorized Publications, provided that (i) “Network For Teaching Entrepreneurship” is credited as the source of the results published therein, and (ii) those Authorized Publications are not distributed or sold or subscribed to for consideration or compensation.
1.6. Restrictions. Client and its End Users may not (a) use, license, sell, redistribute, lease or otherwise transfer or assign the NFTE Courses, NFTE Content or any component thereof, except as expressly permitted herein; (b) alter or permit a third party to alter any part of the NFTE Courses or NFTE Content; (iii) use or permit the use of the NFTE Courses or NFTE Content for any unlawful purpose; or (iv) permit any third party (other than an End User hereunder) to access or use the NFTE Courses or NFTE Content. Client may not permit any End Users other than those authorized pursuant to the Order to access or use the NFTE Courses or the NFTE Content.
1.7. Implementation and Training Services. NFTE will use commercially reasonable efforts to complete all implementation and training services ordered by Client consistent with an implementation schedule to be agreed to by Client and NFTE. Client acknowledges that some of the NFTE Courses may not be available for use (in whole or in part) by Client or its End Users until such implementation or training has been completed.
1.8. Client Support. NFTE will provide Client and its End Users subscribing to the Hosted Courses with reasonable technical assistance by phone and email or other Internet-based communication with respect to the access and use of the NFTE Courses made available via the Authorized LMP; provided, however, that NFTE shall have no obligation to provide support with respect to errors caused by the Authorized LMP. NFTE’s will respond to Client within a reasonable period of time from a request placed by Client during NFTE’s normal support hours, 9 a.m. to 6 p.m., Eastern Standard/Daylight Time, Monday through Friday, holidays excepted; such hours are subject to change without notice. NFTE may also provide support and technical assistance or reference guides to End Users online via the Hosted Courses or at such other locations as NFTE may elect, in its sole discretion.
1.9. Configuration of Services. NFTE may from time to time update the materials included in the Hosted Courses and any other aspects of or relating to the Services in its sole discretion, provided that such changes do not materially adversely affect the functionality of the Services. With respect to any Services or NFTE Courses provided via the Internet (including, without limitation, the Hosted Courses) NFTE does not make any guarantee or warranty as to the quality of transmission of data over telephone, digital subscriber lines or any other method of Internet delivery, including, without limitation, server downtimes or other network related problems, except for the limited warranty set forth in Section 7, below.
1.10. Customizations and Enhancements. From time to time, NFTE may (but is not required to) make enhancements or customizations to the NFTE Courses and NFTE Content. Any intellectual property created in the course of performing the Services, whether by NFTE alone or jointly with Client, shall be and remain the exclusive property of NFTE, and Client assigns any of its rights, interest or title in or to the same to NFTE.
1.11. Assignment of Personnel. Except to the extent prohibited by applicable law, NFTE will: (a) maintain a policy requiring NFTE personnel (including volunteers) to undergo a criminal background investigation at the time of hire or engagement as a volunteer, as applicable, and periodically thereafter; (b) not allow any NFTE personnel whose background check indicates that such personnel has been convicted of, or plead guilty or nolo contendere to, a felony or a crime involving abuse or mistreatment of children to provide any Services.
2. Term.
2.1. Initial Service Term. The term of this MSA begins on the Effective Date and will continue until all Orders have expired or have been terminated. The initial term of each Order, and the initial term of the Client’s subscription for the Services described in the Order (the “Initial Service Term”), begins upon the effective date of that Order and will continue for the period set forth in the Order. If no period is specified in the Order, the Initial Service Term will be a period of one (1) year commencing on the effective date of the Order.
2.2. Renewal Service Terms. The term of an Order may be renewed by for additional successive periods equal to the term specified in the Order (or, if none is specified, for successive one (1) year periods) (each, a “Renewal Service Term”), as follows: (i) at least thirty (30) days prior to the end of the expiring term, NFTE may provide Client with an invoice setting forth the proposed subsequent Renewal Service Term; and (ii) Client’s payment of such invoice by the specified renewal date or continued material use of the Services (including by any End Users) after such date will constitute Client’s acceptance of the Renewal Service Term. If Client does not pay such invoice by the renewal date, then NFTE may, in addition to any other remedy and in its sole discretion at any time after that renewal date, terminate the applicable Order effective as of the end of the expiring term. The Initial Service Term and all Renewal Service Terms are individually and collective referred to the “Service Term.”
3. Fee, Payment & Taxes,
3.1. Fees and Payment. Client agrees to pay all fees due for the Services according to the prices and terms listed in the Order(s). All invoices issued under this Agreement are due within thirty (30) days following the date of invoice, unless a different period is expressly provided on the Order; certain initial fees may be due and payable as a condition to the commencement of Services. In the event any amount due from Client becomes past due, NFTE reserves the right to suspend or terminate the Services (and the applicable Orders) and all licenses granted hereunder on not less than ten (10) days’ notice. Any invoices more than thirty (30) days past due will be subject to a service charge equal to 1.5% of the invoice amount per month, or the maximum amount allowed by law, whichever is less. All fees are non-refundable, except as otherwise explicitly stated in the applicable Order or this Agreement.
3.2. Future Price Adjustments. The fees for any Renewal Service Term will be set at then-current NFTE pricing, unless the Order indicates a price commitment for a specified duration, or unless otherwise agreed by the parties at the commencement of the proposed Renewal Service Term through the execution of a new Order.
3.3. Taxes. Where required by law, NFTE will invoice Client for any state or local sales tax, gross receipts tax or similar amounts that NFTE is obligated to collect from Client (“Taxes”). Client is responsible for paying, and agrees to pay, all Taxes, excluding only taxes based on NFTE’s net income. If Client is exempt from any such Tax, Client will provide NFTE with a valid tax exemption certificate authorized by the appropriate taxing authority to the extent such an exemption certificate is required or reasonably requested to establish such exemption.
4. Client Data.
4.1. License; Rights. The term “Client Data” means information Client creates or otherwise owns, licensed by Client from third parties or otherwise provided to NFTE on Client’s behalf and, in each case, that is uploaded to or processed or accessed by NFTE in connection with the Services, but does not include any de-identified data included in the Output or otherwise derived from the Client Data in accordance with the terms of the Privacy Policy. With respect to any Client Data provided to NFTE, Client: (i) grants NFTE the right to use, copy, modify, manipulate and create derivative works of the Client Data as necessary in order for NFTE to provide and perform the Services; (ii) agrees to secure rights in the Client Data necessary for NFTE to provide the Services without violating the rights of any third party, or otherwise obligating NFTE to Client or any third party (except as otherwise set out in this Agreement). Except as otherwise required by applicable law, NFTE does not and will not accept any obligations in any separate license or other agreement that may apply to the Client Data or use of the Services. NFTE may transmit or disclose Client Data to third parties in accordance with Client’s or its End User’s directions (whether via the Services or otherwise). To the extent the Services include provision of Hosted Courses, then Client acknowledges and agrees that NFTE may transmit and receive Client Data via the Authorized LMP.
4.2. Treatment of Client Data upon Termination.
a. In the event of expiration or termination of any Order, NFTE: (i) will remove, within a reasonable period of time, all Client Data from its online systems; and (ii) may retain copies of the Client Data in its offline data archives for backup, archive or legal recordkeeping purposes, and may subsequently destroy or erase such retained archive data, all in accordance with its data retention policies (provided, however, that the obligations of Section 4.3 shall survive for so long as NFTE maintains any Client Data). In the event that Client requests that NFTE destroys or securely erases any offline back-up copies of Client Data maintained by NFTE prior to the expiration of the retention period specified by NFTE’s policies, then NFTE shall destroy or securely erase such offline back-up copies within a reasonable period of time of Client’s request therefor, subject to (x) Client’s execution and delivery of a written release of any claim with relating to the accuracy, timeliness or correctness of processing of the Client Data or any other claim with respect to which the Client Data would reasonably be expected to be relevant, in a form reasonably satisfactory to NFTE; and (y) Client’s payment to NFTE of a data destruction fee according to NFTE’s then-current fee schedule.
b. Client agrees that, other than as described in this Section 4.2 and notwithstanding any other term in this Agreement, NFTE has no obligation to continue to hold or return any Client Data. Client also agrees that NFTE has no liability for deletion of any Client Data as described herein.
4.3. Privacy and Security. NFTE acknowledges that Client Data may include student-related information from Client that contains personally identifiable information about a student, and that such information is protected under the Family Educational Rights and Privacy Act (“FERPA”), and if applicable under corresponding state laws in Client’s state. NFTE’s access to any personally identifiable information in the Client Data is authorized solely in connection with NFTE’s provision of the Services pursuant to this Agreement and is governed by the Privacy Policy.
4.4. Certain Reimbursements. In the event (a) NFTE is required to respond to any search warrant, court order, subpoena other valid legal order relating to Client or the Client Data, or (b) Client requests material assistance from NFTE in connection with Client’s efforts to conduct any investigation, to cooperate with or respond to any investigation being conducted by a third party, or to pursue or respond to any matter or respond to any legal or administrative proceeding or similar matter, Client will reimburse NFTE for any cost that it incurs in so responding or assisting. Further, if Client requests that NFTE (i) provide Client with a copy (in a mutually agreeable format) of any Client Data in NFTE’s possession in connection with the hosted data software Services that is not then-available to Client via the Services; or (ii) make any changes to Client Data stored in NFTE’s offline archives, whether during the term of this Agreement or after its termination or expiration, NFTE will comply with such requests, subject to Client’s payment of a data retrieval or change fee (as applicable) determined according to NFTE’s then-current fee schedule.
4.5. NFTE Data Collection. To the extent Client uses the Hosted Courses, NFTE may automatically collect usage. statistical and other information regarding Client’s and its End User’s use of the Hosted Courses (collectively, the “System Metrics”). NFTE uses the System Metrics internally to diagnose technical problems, administer the Hosted Courses, and improve its offerings and marketing. The System Metrics do not include any personal information or data related to the user of the Services. NFTE may also de-identify or anonymize the Output generated by the NFTE Courses or other Feedback Tools (defined below) and collected by NFTE hereunder in accordance with the terms of the Privacy Policy (the “Assessment Output”). NFTE uses the Anonymized Output to improve its offerings and marketing and for other research purposes. Notwithstanding any term to the contrary set forth herein, Client agrees and consents to NFTE’s collection and use of the System Metrics and Anonymized Output as set forth herein, and Client further agree that the System Metrics and Anonymized Output do not constitute Client Data and are NFTE’s sole and exclusive property.
5. Client Responsibilities.
5.1. Client Resources. Client will provide NFTE, in a timely manner, with all data and information reasonably necessary for NFTE to perform the Services (including Client Data). If necessary to enable NFTE to provide or perform the Services under this Agreement, Client will provide and coordinate, in a timely manner, NFTE’s onsite access to any Client facilities or Client network or system (the “Client System”). Client will inform NFTE in writing and in advance of the provision of the Services, of any security and access standards or requirements with respect to the Client System.
5.2. Learning Management Platform. To the extent Client purchases access to the Hosted Courses, Client is solely responsible for maintaining its subscription to the Authorized LMP during the Services Term and for its End User’s access and use of the Authorized LMP and the Hosted Courses available via the same. To the extent Client purchases access to the Local Courses, Client is solely responsible for loading the Local Courses on Client’s learning management platform and for its End User’s access and use of the Local Courses via such platform.
5.3. Assessment Tools. Client agrees to require faculty End Users to participate in, and use reasonable efforts to obtain participation from student End Users, such assessments, surveys or other tools made available by NFTE at jump.nfte.com or such other tools made available from time to time in connection with the Services (collectively, “Assessment Tools”). For the absence of confusion, the Assessment Tools are considered NFTE Content for purposes of this Agreement, and all Output generated from such Assessment Tools is subject to the terms and conditions hereof.
6. Termination.
6.1. By NFTE. In addition to any other termination rights described in this Agreement (including any applicable Terms of Service), NFTE may terminate any Order or this Agreement immediately (or, in its sole discretion, suspend the provision of the Services) upon notice to Client if Client (a) breaches this Agreement and fail to cure such breach within thirty (30) days of written notice describing such breach, except in the case of failure to pay fees or other amounts due under this Agreement, which such breach must be cured within ten (10) days after NFTE’s notice of such delinquency; or (b) breaches, or an End User, breaches any license, restriction on use, confidentiality or intellectual property terms of this Agreement.
6.2. By Client. Client may terminate this Agreement or any Order immediately upon written notice to NFTE if NFTE breaches this Agreement and fails to cure such breach within thirty (30) days of written notice describing such breach.
6.3. Termination of Service Agreement. NFTE’s ability to provide the Services may be subject to various licenses or other agreements (each a “Service Agreement”) between NFTE and its third party suppliers. In the event of the expiration or termination of any applicable Service Agreement, NFTE will use commercially reasonable efforts to obtain alternative suppliers in order to avoid suspension or disruption in the Services. If NFTE is unable, for any reason, to obtain such an alternative or replacement Service Agreement, or if NFTE reasonably determines that the provision of any Services would be a violation of any applicable law or regulation or any NFTE license in any jurisdiction or is no longer permitted under any of the same, NFTE may terminate all affected Orders upon written notice to Client without any liability to Client. NFTE will give Client at least sixty (60) days prior written notice to Client (or, if it is not possible to give 60 days notice, as much notice as possible under the circumstances) of the termination or expiration of a Service Agreement governing NFTE’s ability to deliver the Services, or any other condition arising under such Service Agreement that is likely to adversely affect Client’s use of the Services or NFTE’s ability to provide the Services. If NFTE terminates any Order pursuant to this Section 6.3, and Client has prepaid for any Services under that Order, then NFTE will, after applying such prepayment to all fees and charges due under the Agreement, return the unused portion of such prepayment to Client within forty-five (45) days after the date of termination.
6.4. Procedure upon Termination. Upon the effective date of termination of any Order, and in addition to any other post-termination obligations in this Agreement, NFTE will cease providing the terminated Services to Client and its End Users, Client and its End Users will cease using the Services, and all Client’s payment obligations through the effective date of termination will immediately become due; provided, however, that in the event of any termination of the applicable Order for Local Courses pursuant to Section 6.2 or 6.3, then Client’s license under Section 1.5 shall be perpetual, subject to Client’s continued compliance with the terms of this Agreement regarding restrictions on use, confidentiality and intellectual property. In addition to the foregoing, promptly upon termination of this Agreement as a whole, each party will return all Confidential Information of the other party in its possession and will not make or retain any copies of such Confidential Information, except as otherwise expressly set forth in this Agreement or as required (and only to the extent necessary) to comply with any applicable legal, archival or accounting record keeping requirement; provided, however, that all such retained Confidential Information will remain subject to the provisions of Section 9 of this MSA.
6.5. Survival. Except as otherwise set forth in a notice of termination, termination of any Order will not serve to terminate any other Order or the parties’ respective obligations under this Agreement with respect to non-terminated Orders or Services. This MSA will terminate automatically upon the termination or expiration of all Orders. The terms and conditions set forth the signature page of this MSA, the definitions in this Agreement and the respective rights and obligations of the parties under Sections 4.2 (Treatment of Client Data upon Termination), 4.5 (NFTE Data Collection), 6.4 (Procedure Upon Termination), 6.5 (Survival), 7 (Warranties; Disclaimer), 8 (Limitations of Liability), 9 (Confidential Information; Proprietary Rights), and 10 (General Provisions) will survive any termination or expiration of this Agreement.
7. Warranties; Disclaimer. Subject to Client’s compliance with the terms and conditions of this Agreement, NFTE warrants that it will use commercially reasonable efforts to provide the Services to Client in a professional and work person like manner. CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE WARRANTY CONTAINED IN THIS SECTION 7 IS REDELIVERY OR RE-PERFORMANCE OF THE SERVICES, AS APPLICABLE.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE APPLICABLE TERMS OF SERVICE, THE SERVICES ARE PROVIDED EXCLUSIVELY ON AN “AS IS” BASIS, AND NFTE DISCLAIMS ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES WITH RESPECT TO THE SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE. NFTE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. NFTE DOES NOT WARRANT OR GUARANTEE ANY SPECIFIC RESULTS FROM CLIENT’S OR ITS END USERS’ USE OF THE SERVICES. AS BETWEEN THE PARTIES, CLIENT SHALL BE SOLELY RESPONSIBLE FOR ENSURING THE ACCURACY OF ALL CLIENT DATA PROVIDED BY CLIENT IN CONNECTION WITH THE SERVICES.
8. Limitations of Liability.
8.1. Exclusion of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND, INCLUDING COST OF REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF INFORMATION OR DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
8.2. Limitations on Liability. IN NO EVENT WILL THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY LICENSE, USE OR OTHER EMPLOYMENT OF ANY SERVICE, ARISING UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EXCEED AN AMOUNT EQUAL TO TWELVE (12) MONTHS OF FEES APPLICABLE TO THE AFFECTED SERVICE(S) AT THE TIME OF THE EVENT. NOTWITHSTANDING THE PREVIOUS SENTENCE, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY TO THE EXTENT SUCH LIABILITY WOULD NOT HAVE OCCURRED BUT FOR THE OTHER PARTY’S OWN FAILURE TO COMPLY WITH THE TERMS OF THIS AGREEMENT. The limitations set forth in this Section 8.2 will not apply to any fees or reimbursable expenses due to NFTE under this Agreement.
8.3. Force Majeure. Neither party will be liable for any loss or delay (including failure to maintain any given service level) resulting from any event beyond the affected party’s reasonable control, including, fire, natural disaster, labor stoppage, internet service provider failures or delays, terrorism, civil unrest, war or military hostilities, criminal acts of third
parties, and any payment date or delivery of service date will be extended to the extent of any delay resulting from any force majeure event.
8.4. Acknowledgement; Exceptions. Both parties acknowledge that the fees payable under the Order(s) reflect the allocation of risk set forth in this Agreement and that the parties would not enter into this Agreement without the limitations in this Section 8. The limitations in this Section 8 shall not apply to any damages arising from (a) a party’s breach of any license, restrictions on use, confidentiality or intellectual property terms of this Agreement; or (b) a party’s gross negligence or willful misconduct.
9. Confidential Information; Intellectual Property Rights.
9.1. Nondisclosure. Each party acknowledges that it will have access to certain non-public and confidential information (collectively, “Confidential Information”). NFTE’s Confidential Information expressly includes information NFTE creates or otherwise owns or licenses from third party and related to the Services, including, without limitation, all of NFTE’s proprietary software and other technology with respect to the Services, all documentation relating to the Services (both printed and electronic), all NFTE Courses and NFTE Content, and any derivatives, improvements, enhancements, upgrades and updates of the foregoing conceived, reduced to practice or otherwise developed during the term of this Agreement by either party (collectively, the “NFTE Technology”), together with any processing, storage and transmission information that may be necessary for NFTE to perform its obligations under this Agreement, but excluding Client Data. Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or to the limited extent required to achieve the purposes of, this Agreement, nor disclose to any third party (except as required by law or to such party’s employees, attorneys, accountants and other advisors as reasonably necessary), any Confidential Information of the other party. Each party will protect the confidentiality of the Confidential Information of the other party by employing the same measures (but in no event less than reasonable measures) as it takes to protect its own Confidential Information. The obligations of this Section 9 will last during and after the term of this Agreement.
9.2. Legal Disclosure. The receiving party may disclose Confidential Information pursuant to the requirements of a validly issued subpoena, governmental agency or by operation of law, provided that it gives the disclosing party, when practical and permitted, reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure. If Client is a governmental entity, the terms of this Section 9 are subject to the requirements of applicable trade secret, public records and similar laws. NFTE regards the NFTE Technology as its trade secret and requires that Client treat it such with respect to any public records requests with respect to the NFTE Technology, in accordance with applicable law.
9.3. Agreement. The parties expressly agree that the terms of this Agreement will be maintained in confidence and that neither party will disclose the terms of this Agreement to any Third Party without the prior written approval of the other party. Notwithstanding anything to the contrary contained in this Agreement, each party will have the right to disclose that Client is NFTE’s customer.
9.4. Proprietary Rights. Exclusive of Client Data, NFTE and its licensors will retain all right, title, and interest (including copyright and other intellectual property rights or informational rights) in and to the Services and all legally protectable elements or derivative works of the foregoing, including, without limitation, the NFTE Technology. NFTE may place copyright and/or other proprietary notices, including hypertext links, within the Services, and neither Client nor any of its End Users will remove such notices without NFTE’s written permission. Notwithstanding anything to the contrary in this Agreement, NFTE will not be prohibited or enjoined at any time by Client from utilizing any skills, knowledge or information of a general nature acquired during the course of providing the Services, including, without limitation, knowledge or information publicly known or available or that could reasonably be acquired in similar work performed for another customer of NFTE.
9.5. Remedies. In the event of a violation or threat of violation by a party, directly or indirectly, of the terms of this Section 9 the party who would be harmed by such violation, will have the right, and in addition to all other remedies available to it at law, in equity or under this Agreement, to affirmative or negative injunctive relief from a court of competent jurisdiction. Each party acknowledges that a violation of this section would cause irreparable harm and that all other remedies are inadequate.
10. General Provisions.
10.1. Independent Contractors. The parties and their respective employees are and will be independent contractors and neither party by virtue of this Agreement will have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
10.2. Notices. Client’s address for communication and notice purposes relating to this Agreement is set forth on the signature page of this MSA (or such replacement address as Client may designate in accordance with this section from time to time). Client agrees to accept emails from NFTE at the e-mail address specified under this Section. NFTE may provide any
and all notices, statements and other communications to Client through either e-mail or by mail or express delivery service, and all notices directed to Client as described in this section will be deemed upon transmission or within one (1) business day after deposit with the U.S. Postal Service or express delivery service, as applicable. In addition, NFTE may rely and act on all information, authorizations and instructions provided to NFTE from all Client administrators specified on the MSA execution page or otherwise by Client in writing to NFTE. Any notices to NFTE must be in writing and addressed to NFTE at the address set forth on the signature page (or such replacement address as NFTE may designate in accordance with this section from time to time) and must be delivered by e-mail (with such transmission confirmed either by non-automated reply or by the prompt deposit of a copy of such transmission with the U.S. mail, postage prepaid) or express delivery service.
10.3. Governing Law. This Agreement will be interpreted in accordance with the laws of the State of New York and any controlling U.S. federal law (but excluding the Uniform Computer Information Transactions Act (UCITA), whether or not adopted in a given state). Any action or proceeding arising from or relating to this Agreement must be brought in a state or federal court having jurisdiction over New York County, New York, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding and agrees to waive any defenses to venue and jurisdiction including forum non conveniens. Each party will bear its own costs in connection with any legal proceeding arising under this Agreement, except that NFTE will be entitled to recover its reasonable attorneys’ fees in the event of any action brought to collect any fees due under this Agreement.
10.4. Waiver; Amendment. No waiver of any provision of this Agreement or of any right or remedy under this Agreement will be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. Neither any delay in exercising, nor any course of dealing with respect to, nor any partial exercise of any right or remedy under this Agreement will constitute a waiver of any other right or remedy, or of any future exercise of that right or remedy. This Agreement may not be modified, altered or amended except by a written instrument duly executed by both parties. The Agreement may not be modified or amended, except as expressly set forth in this Agreement, or in writing and signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted, or by a properly executed Order.
10.5. Severability; Interpretation. If any provision is held by a court to be contrary to law, such provision will be eliminated or modified to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. The headings in this Agreement are provided for convenience only and will not affect its construction or interpretation. As used in this Agreement, the term “Including” means “including, without limitation.”
10.6. Beneficiaries; Successors and Assigns. There are no third party beneficiaries to this Agreement. This Agreement will inure to benefit and bind the parties listed on the signature page of this MSA and their successors and assigns. Client may not assign this Agreement without prior written consent of NFTE. NFTE reserves the right to name Client as a user of the Service.
10.7. Limitation on Actions. No action arising out of this Agreement, regardless of the form, may be brought by either party more than two (2) years after the cause of action has arisen, or the date of last payment made by Client, whichever is later.
10.8. Governmental Users. This Section 10.8 applies to all use of the NFTE Technology by or for the U.S. government or by any prime contractor or subcontractor under any contract, grant or other activity with the U.S. government. The NFTE Technology provided to Client under this Agreement are “commercial items” as that term is defined at 48 CFR 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 CFR 12.212 and other applicable acquisition regulations and are provided to Client only as a commercial item. Consistent with 48 CFR 12.212, 48 CFR 227.7102, and 48 CFR 227.7202, all U.S. Government End Users, if any, acquire the NFTE Technology with only those rights and subject to the restrictions set forth in this Agreement. Notwithstanding the foregoing, the NFTE Technology may not be acquired by the U.S. Government pursuant to a contract incorporating clauses prescribed by 48 CFR 27.4, 48 CFR 227.71 or 48 CFR 227.72. Contractor/manufacturer is NFTE Education, LLC, 120 Wall Street Suite 1850 New York, NY 10005, Attn: President & CEO.